STEVEN LANGERT v. THE LAKEWOOD VIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STEVEN LANGERT,

Plaintiff-Appellant,

v.

THE LAKEWOOD VIEW a/k/a

THELAKEWOODVIEW.COM a/k/a

LAKEWOODSVOICE.COM, HAROLD

HERSHEL HERSKOWITZ, YONA

KVIAT and YISROEL "ARI"

GOODMAN,

Defendants-Respondents.

_______________________________

January 16, 2014

Before Judges Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2200-12.

Reuel E. Topas argued the cause for appellant.

Larry S. Loigman argued the cause for respondent.

PER CURIAM

Plaintiff Steven Langert appeals from the summary judgment dismissal of his defamation action filed against defendants Harold Hershel Herskowitz, Yona Kviat and Yisroel "Ari" Goodman, the owners and/or operators of a website known as The Lakewood View1 (the View). We affirm.

These facts are contained in the summary judgment record. In 2008, plaintiff was elected to the Lakewood Township Committee (Committee) and began serving his term in 2009. In 2010 he was the Mayor. Defendant Herskowitz is a political rival.

A series of articles concerning Langert were published in the View, four of which are cited in his complaint as the foundation for the cause of action. The first, published on July 23, 2010, was entitled: "Former Chairman of Defunct Commission tells Mayor to Drop Dead."2 The article "detailed how Herskowitz, the Former Chairman of the Defunct Downtown Merchants' Commission constantly interrupted Langert during a Township Committee meeting." Specifically, the complaint cites this excerpt from the article:

During this "give and take" between the Mayor [Langert] and Herskowitz, Langert asked Herskowitz if he would mind repeating a comment he made privately to Langert when Langert told him he may not enact one of the Commission's ideas. Herskowitz replied that he told Langert "if you don't agree with me I will paint my store black and paint a picture of a hand with the finger raised with a picture of you (Langert) on top of the middle finger[.]" "And what did you say you would write underneath the picture[,]" queried Langert further. "I said I would write "Drop dead Mayor Langert[,]" answered Herskowitz to which Langert implied the language used by Herskowitz was of the foul variety.

Herskowitz unsuccessfully challenged Langert in the primary election for the Committee in 2010 and 2011. Three days before the 2011 primary election, the View published the second article identified by Langert in his complaint as, "Congratulations Steve Langert On Your Poker Winnings."3 Langert's complaint states the article "sarcastically observed":

There are many people that feel there is a problem having a mayor that is also a professional poker player. There has been much discussion about whether we could trust someone that gambles with thousands of dollars can be trusted to be an honest figure in our local government. But this editor thinks there is nothing wrong with it. Look at this website . . . [Hendon Mob Poker Database] he is listed as coming in 19th place in one poker tournament, not bad, and 76th a few years before that. He doesn t seem to have won lately though. Hopefully he can improve his game and make us all proud of him. I wonder if he ever tells a fellow player, that he will see his 500 dollars and raise him an approval for his townhouses. [J]ust kidding of course he doesn t ([I] hope).

On Election Day, November 8, 2011, the View published the third article, identified as authored by Herskowitz, titled: "Why [W]e Can't Afford [T]hree [M]ore [Y]ears of Langert (and Singer)."4 Langert alleged this sentence was defamatory:

Furthermore, . . . Langert's well known penchant for gambling in an extremely addictive manner makes him untrustworthy to manage our finances responsibly.

Langert was re-elected. The final article, published on March 28, 2012, was entitled "Committeeman Steven Langert [I]mplicated in Eliyahou Weinstein Investment [F]raud."5 The allegedly offensive content cited is as follows:

When the notorious Ponzi scheme crook Eli Weinstein was indicted, numerous Lakewood residents were shocked to see Committeeman Steven Langert in close contact and consultation with Mr. Weinstein. New court filings show that the relationship was closer than one might have thought. According to sworn testimony of Mr. Langert's partner, I[srael] P[ollack], Mr. Steven Langert received at least $25,000 from a kick back [sic] scheme, which itself was payback for aiding an[d] consulting the defrauding o[f] Moshe Meisels of $3,500,000.

When originally posted, the article purportedly contained embedded images of pages taken from a deposition transcript of Pollack, conducted during discovery in Meisels v. Weinstein, Docket No. OCN-C-14-09.6 See also Meisels v. Weinstein, No. A-2734-10 (App. Div. Oct. 21, 2011) (describing the fraud allegations as alleged in the Chancery Division matter). On April 3, 2012, an embedded image of a complaint initiating an adversary proceeding filed by Meisels in Pollack's Chapter 7 Bankruptcy proceeding, then pending in the United States Bankruptcy Court for the District of New Jersey (Case No. 12-13346 RTL), was added. The adversary proceeding sought to declare Pollack's debt to Meisels non-dischargeable because it had been incurred by fraud. Exhibit D attached to the adversary proceeding represented ten pages of Pollack's deposition transcript.7

Langert, maintaining the article's criminal allegations were "categorically false" and defamatory per se, sent a demand placing the individual defendants on notice to cease and desist from publishing the "[d]efamatory [c]riminal [a]llegations" and demanding the View publish a retraction and apology.

Thereafter, Langert initiated this action in the Chancery Division seeking equitable relief and damages. He alleged the cited articles contained actionable defamatory statements. Defendants denying all allegations, asserted twenty affirmative defenses, and filed a counterclaim for damages. The case was transferred to the Law Division.

Following some discovery, defendants moved for summary judgment. Judge Craig L. Wellerson conducted the hearing, during which Langert explicitly conceded the initial July 23, 2010 article did not constitute defamation, and instead directed the judge to focus on the pre-primary publication and the November 8, 2011 piece which discussed Langert's gambling (count one of his complaint), along with the March 28, 2012 article regarding Langert's relationship with Weinstein who allegedly defrauded Meisels (count two of his complaint). The motion transcript makes clear Judge Wellerson had reviewed copies of each article, not merely the excerpts included in the complaint.

Judge Wellerson analyzed the cited articles in regard to count one, noting their suggestion that Langert had a gambling problem was merely opinion. The judge found the "language is the type of hyperbolic banter that has been identified by the [c]ourt numerous times in the past" and was not "a fact-based statement." Further, a "reasonable reader" would not conclude Langert received "a medical diagnosis of addictive gambling that would cause any harm," and viewed the comment on Langert's "trustworthiness for public office," as nothing more than speculation and hyperbole, essentially constituting opinion.

Reviewing the March 28, 2012 article presented in count two of the complaint discussing Meisels' swindle, Judge Wellerson determined the publication identified Langert as receiving a $25,000 payment from what turned out to be a kickback scheme, wherein the money had been generated from Weinstein's illegal activity in defrauding Meisels. Langert's assertion of defamation was rejected because no "reasonable reader would come to the conclusion that Langert was a co-conspirator in the kickback scheme, [or] that he orchestrated some sort of illegal activity."

Accordingly, the judge granted defendants' motion for summary judgment

finding that there is no reasonable cause of action under the interpretation that would survive analysis by any reasonable fact-finder in the circumstances. It is an extraordinarily high bar. It has to be clear and convincing and that the [c]ourt is well satisfied that . . . there is a long history of public figures who have come before the [c]ourt aggrieved of insults and other comments which may have been unflattering or upsetting to their own public image, but the [c]ourt doesn t find that the instance in this case rises to a level where defamation would be an avenue that would ultimately provide Langert with any relief.

This appeal followed.

"'In an appeal of an order granting summary judgment, appellate courts employ the same standard [of review] that governs the trial court.'" W.J.A. v. D.A., 210 N.J. 229, 237 (2012) (alteration in original) (quoting Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). This court "'should first decide whether there was a genuine issue of material fact, and if none exists, then decide whether the trial court's ruling on the law was correct.'" Id. at 237-38 (quoting Henry, supra, 204 N.J. at 330). The evidence must be viewed "in the light most favorable to the non-moving party" and the reviewing court will "analyze whether the moving party was entitled to judgment as a matter of law." Id. at 238 (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)). "The trial court's conclusions of law and application of the law to the facts warrant no deference from a reviewing court." Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). We note summary judgment is a favored device for winnowing out non-meritorious defamation cases before they are improperly listed for trial. See Kotlikoff v. The Cmty. News, 89 N.J. 62, 67-68 (1982).

On appeal, Langert challenges the conclusion the alleged offensive statements were non-actionable opinion. He argues the articles' content "were clearly intended to be taken as fact[,]" as shown by the links to supporting materials, designed "to convince the reader of the veracity of the facts asserted in the article." Langert includes within this assertion the procedural challenge that the motion should have been reviewed pursuant to Rule 4:6-2(e), governing a motion to dismiss for failure to state a claim, because "virtually no discovery had been completed and the motion relied entirely on legal argument that the plaintiff could not sustain a cause of action on the pleadings."

We address the procedural issue first. We determine the contention is meritless.

"[I]n deciding whether to grant summary judgment, a court should proceed cautiously when presented with an incomplete record." G.D. v. Kenny, 205 N.J. 275, 304 (2011). However, "a claim of incomplete discovery will not defeat a summary judgment motion where the party opposing the motion has not sought discovery within the time prescribed by R[ule] 4:24-1. . . ." Pressler & Verniero, Current N.J. Court Rules, comment 2.3.3. on R. 4:46-2 (2013) (citing Liberty Surplus Ins. Co. v. Nowell Amoroso, P.A., 189 N.J. 436, 450-51 (2007)). In this matter, Langert failed to seek discovery. Therefore, the fact discovery may not have been completed is of no consequence in determining defendants' motion.

Turning to Langert's substantive claim of error in the trial judge's legal analysis based on the factual record, Langert believes the facts and inferences, viewed most favorably to him, present a prima facie claim of defamation, defeating defendants' motion for dismissal. We disagree.

"In a summary-judgment motion seeking to dismiss a defamation action, the threshold issue is whether the allegedly defamatory statements are reasonably susceptible of a defamatory meaning."8 Petersen v. Meggitt, 407 N.J. Super. 63, 74 (App. Div. 2009) (citations and internal quotation marks omitted). "Whether the statement is susceptible of a defamatory meaning is a question of law for the court." DeAngelis, supra, 180 N.J. at 14.

Generally, "a statement is defamatory if it is false, communicated to a third person, and tends to lower the subject's reputation in the estimation of the community or to deter third persons from associating with him." W.J.A., supra, 210 N.J. at 238 (citing Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 164-65 (1999)). To determine whether a statement is defamatory, we examine "the publication as a whole and consider particularly the context in which the statement appears." Romaine v. Kallinger, 109 N.J. 282, 290 (1988). Further, we consider "content, verifiability, and context of the challenged statements." Ward v. Zelikovsky, 136 N.J. 516, 529 (1994). In this regard, first the

statement's content is judged by its objective meaning to a reasonable person of ordinary intelligence. Second[], only verifiable statements can be defamatory. Finally, a statement's meaning can be affected by its context. The focus is on the effect of the alleged defamatory statement on third persons, that is, whether they viewed the plaintiff in a lesser light as a result of hearing or reading the offending statement.

[Dello Russo v. Nagel, 358 N.J. Super. 254, 263-64 (App. Div. 2003) (citations omitted).]

"[T]he law of defamation exists to achieve the proper balance between protecting reputation and protecting free speech." DeAngelis, supra, 180 N.J. at 12 (citations and internal quotation marks omitted). Therefore, a claim cannot lie for one's expression of "pure opinion," particularly on a matter of public concern. Kotlikoff, supra, 89 N.J. at 68-69.

An opinion is "pure" when "the maker of the comment states the facts on which he bases his opinion . . . and then states a view as to the plaintiff's conduct, qualifications or character." Ibid. Alternatively, a "mixed" opinion, that is, one "apparently based on facts about the plaintiff or his conduct that have neither been stated by defendant nor assumed to exist by the parties to the communication[,]" may be defamatory if it implies underlying objective facts which are false. Id. at 69. "[W]here an opinion is accompanied by its underlying nondefamatory factual basis a defamation action premised upon the opinion will fail, no matter how unjustified, unreasonable or derogatory the opinion might be." Id. at 72-73. This results "because readers can interpret the factual statements and decide for themselves whether the writer's opinion was justified." Id. at 73. Finally, a statement construed as either fact or opinion cannot result in liability, because "[a]n interpretation favoring a finding of fact would tend to impose a chilling effect on speech." Lynch, supra, 161 N.J. at 168 (citations and internal quotations marks omitted).

Guided by these legal principles, our examination of the View articles identified by Langert cannot support his claim of defamation. Considering each publication in its entirety, we conclude at best the articles express a "mixed" opinion. Yet, Langert offers no evidence the underlying facts are false. Consequently, the publications are not actionable and summary judgment was properly granted.

Defendants' statements suggesting Langert has a "well known penchant for gambling in an extremely addictive manner makes him untrustworthy to manage our finances responsibly[,]" is a mixed opinion. The View provided evidence Langert participated in professional gambling tournaments and a prior article contained hyperlinks to three gambling sites listing Langert's participation in poker tournaments. Langert never disputed he gambled. Instead, he objected to the description of his participation as doing so in an "extremely addictive manner." Judge Wellerson correctly found this comment is merely an opinion. So too, the articles' queries regarding trustworthiness or whether one "can be trusted to be an honest figure in our local government" smacks squarely of opinion, not a presentation of fact.

We also find unfounded Langert's interpretation of the March 8, 2012 article as "tying him to participation in criminal conduct." Langert's contention the article was meant to be factual, not opinion, because defendants embedded court documents to prove these claims is rejected.

Falsely "[a]ttributing a criminal act to someone is slander per se," and untrue "innuendo that insinuates guilt of wrongdoing will not be protected[.]" Salzano v. N. Jersey Media Grp. Inc., 201 N.J. 500, 540-41 (2010). When examining claims of defamation caused by criminal allegations, a court must "examine a statement in context to determine whether it conveys the impression that a plaintiff is being accused of a crime," Karnell v. Campbell, 206 N.J. Super. 81, 89 (App. Div. 1985) (citing Kotlikoff, supra, 89 N.J. at 71), or reflects "merely . . . pejorative rhetoric[.]" Kotlikoff, supra, 89 N.J. at 72.

Judged by that standard, we are unable to construe the View's publication as Langert suggests. Langert's interaction with Weinstein was not false. Moreover, Pollack's deposition discussed Langert's oral agreement to purchase property from Weinstein's company resulting in Pollack and Langert's company realizing $50,000, half of which Langert received.

While the article possibly is fraught with innuendo because it includes sensationally charged words such as "kickback scheme," "payback," and "defrauding," when it is read in its entirety and considered in light of the embedded documents which provide the basis for the opinion, the text unambiguously states Langert received funds that turned out to be illicitly obtained by Weinstein. The publication does not falsely state Langert was part of the fraud or committed a criminal offense. See Kotlikoff, supra, 89 N.J. at 65, 72 (dismissing defamation claims finding a published letter to the editor stating the township mayor was engaged in a "huge coverup" or "conspiracy" because he refused to disclose the names of delinquent local property taxpayers was "merely . . . pejorative rhetoric").

For completeness, we also agree with defendants' legal assertion Langert's claims failed in another regard. Langert's position as Mayor and Committeeman makes him a public figure requiring him to establish "actual malice" existed in the publication of defamatory content. DeAngelis, supra, 10 N.J. at 13 (holding a "plaintiff must establish by clear and convincing evidence defendant published the statement with knowledge that it was false or with reckless disregard of whether it was false"). It is only when "'the recklessness approaches the level of publishing a knowing, calculated falsehood,' based on the summary-judgment record, should the case go to the jury." Durando v. Nutley Sun, 209 N.J. 235, 252 (2012) (quoting Massera v. N.J. Monthly, 89 N.J. 176, 200, cert. denied, 459 U.S. 907, 13 S. Ct. 211, 74 L. Ed. 2d 169 (1982)). This determination requires a "subjective inquiry[.]" Trump v. O'Brien, 422 N.J. Super. 540, 549 (App. Div. 2011). "Actual malice has nothing to do with hostility or ill will; rather it concerns [a] publisher's state of knowledge of the falsity of what he published, not at all upon his motivation in publishing it." DeAngelis, supra, 180 N.J. at 17 (citations and internal quotations omitted).

This court has enunciated the standards to be met on summary judgment when examining this issue:

"To determine whether a genuine issue of material fact exists regarding actual malice, a court must consider whether the plaintiff has produced the 'quantum and quality of proof necessary under the New York Times v. Sullivan standard." Costello v. Ocean County Observer, 136 N.J. 59, 614 (1994) (quoting Schiavone Constr. Co. v. Time, Inc., 847 F.2d 1069, 1089 (3d Cir. 1988)). "When a case concerns a public official or public figure, the court should grant summary judgment dismissing the complaint if a reasonable jury could not find that plaintiff had established actual malice by clear and convincing evidence." Lynch, supra, 161 N.J. at 169. "Although courts construe the evidence in the light most favorable to the non-moving party in a summary judgment motion, the 'clear and convincing' standard in defamation action[s] adds an additional weight to the plaintiffs' usual 'preponderance of the evidence' burden." Costello, supra, 136 N.J. at 615. "Plaintiffs . . . must produce substantial evidence to survive a motion for summary judgment." Ibid.

[Berkery v. Est. of Stuart, 412 N.J. Super. 76, 91-92 (App. Div. 2010) (alteration in original).]

Here, no proof of fabrication by defendants has been shown. Durando, supra, 209 N.J. at 252. Moreover, Langert has not produced anything from which we might construe defendants knew the assertions were false. Lynch, supra, 161 N.J. at 169. Rather, the embedded pleadings merely provide the factual basis for the author's opinion.

1 See http://lakewoodsvoice.com/ (last viewed January 5, 2014).

2 The articles are not attached as exhibits to the complaint, which includes only a web address. See http://thelakewoodview. com/local-news/former-chairman-of-defunct-commission-tells-mayor-to-drop-dead/ (last viewed January 5, 2014).

3 Langert's complaint references this web address http://thelakewoodview.com/local-news/congratulations-mayor-on-your-pokers-winnings/. However, an error message appears explaining, "The page doesn't exist . . ."

4 See http://thelakewoodview.com/impact/why-we-cant-afford-three-more-years-of-langert-and-singer-by-hershel-herskowitz/ (last viewed January 5, 2014)..

5 See http//thelakewoodview.com/politics/committeeman-steven-langert-implicated-in-eliyahou-weinstein-investment-fraud (last viewed January 5, 2014).

6 During oral argument on the summary judgment motion defendants' counsel represents there were ninety-seven pages in the transcript.

7 The original embedded images of the deposition passages originally contained in the article are no longer visible. Exhibit D attached to the adversary proceeding is blurred and substantially illegible.

8 To prevail on a defamation claim, a plaintiff must prove: "(1) the assertion of a false and defamatory statement concerning another; (2) the unprivileged publication of that statement to a third party; and (3) fault amounting to at least negligence by the publisher." DeAngelis v. Hill, 180 N.J. 1, 12-13 (2004). Moreover, when the plaintiff is a public official, he or she must also establish that the defendant acted with "actual malice" in the publication of the communication. Id. at 13.